[Federal Register Volume 74, Number 163 (Tuesday, August 25, 2009)]
[Notices]
[Pages 42861-42873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-20492]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XQ20
Incidental Takes of Marine Mammals During Specified Activities;
Marine Geophysical Survey in the Northeast Pacific Ocean, August-
October, 2009
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of incidental take authorization.
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SUMMARY: In accordance with the Marine Mammal Protection Act (MMPA)
regulations, notification is hereby given that NMFS has issued an
Incidental Harassment Authorization (IHA) to Lamont-Doherty Earth
Observatory (L-DEO), a part of Columbia University, to take small
numbers of marine mammals, by Level B harassment only, incidental to
conducting a marine seismic survey in the northeast Pacific Ocean.
DATES: Effective August 19, 2009 through October 13, 2009.
ADDRESSES: A copy of the IHA and the application are available by
writing to P. Michael Payne, Chief, Permits, Conservation and Education
Division, Office of Protected Resources, National Marine Fisheries
Service, 1315 East-West Highway, Silver Spring, MD 20910-3225 or by
telephoning the
[[Page 42862]]
contact listed here. A copy of the application containing a list of the
references used in this document may be obtained by writing to the
address specified above, telephoning the contact listed below (see FOR
FURTHER INFORMATION CONTACT), or by visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications. Documents
cited in this notice may be viewed, by appointment, during regular
business hours, at the aforementioned address.
FOR FURTHER INFORMATION CONTACT: Jeannine Cody, Office of Protected
Resources, NMFS, (301) 713-2289 ext 113.
SUPPLEMENTARY INFORMATION:
Background
Section 101(a)(5)(D) of the MMPA (16 U.S.C. 1371 (a)(5)(D)) directs
the Secretary of Commerce (Secretary) to allow, upon request, the
incidental, but not intentional, taking of marine mammals, for periods
of not more than one year, by United States citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and, if the taking is
limited to harassment, a notice of a proposed authorization is provided
to the public for review.
Authorization for incidental taking of small numbers of marine
mammals shall be granted if NMFS finds that the taking will have a
negligible impact on the species or stock(s), and will not have an
unmitigable adverse impact on the availability of the species or
stock(s) for subsistence uses. The authorization must set forth the
permissible methods of taking, other means of effecting the least
practicable adverse impact on the species or stock and its habitat and
monitoring and reporting of such takings. NMFS has defined ``negligible
impact'' in 50 CFR 216.103 as ''...an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival.''
Section 101(a)(5)(D) of the MMPA established an expedited process
by which citizens of the United States can apply for an authorization
to incidentally take small numbers of marine mammals by harassment.
Except with respect to certain activities not pertinent here, the MMPA
defines ``harassment'' as:
any act of pursuit, torment, or annoyance which (i) has the
potential to injure a marine mammal or marine mammal stock in the
wild [``Level A harassment'']; or (ii) has the potential to disturb
a marine mammal or marine mammal stock in the wild by causing
disruption of behavioral patterns, including, but not limited to,
migration, breathing, nursing, breeding, feeding, or sheltering
[``Level B harassment''].
Section 101(a)(5)(D) of the MMPA establishes a 45-day time limit
for NMFS' review of an application followed by a 30-day public notice
and comment period on any proposed authorizations for the incidental
harassment of small numbers of marine mammals. Not later than 45 days
after the close of the public comment period, if the Secretary makes
the findings set forth in Section 101(a)(5)(D)(i) of the MMPA, the
Secretary shall issue or deny issuance of the authorization with
appropriate conditions to meet the requirements of clause
101(a)(5)(D)(ii) of the MMPA.
Summary of Request
On February 11, 2009, NMFS received an application from L-DEO for
the taking by Level B harassment only, of small numbers of 33 species
of marine mammals incidental to conducting a marine seismic survey
within the Exclusive Economic Zone (EEZ) of Canada in the northeast
Pacific Ocean during August through October 2009. L-DEO, with research
funding from the NSF, is conducting the geophysical data acquisition
activities. NMFS outlined the purpose of the research program in a
previous notice for the proposed IHA (74 FR 21631, May 8, 2009).
Description of the Specified Activity
The planned survey will involve one source vessel, the R/V Marcus
G. Langseth (Langseth), a seismic research vessel owned by the NSF and
operated by L-DEO. The proposed project is scheduled to commence on
August 19, 2009, and scheduled to end on October 13, 2009. The vessel
will depart Astoria, Oregon on August 19, 2009 for transit to the
Endeavor MPA, between 47-48[deg] N. and 128-130[deg] W.
To obtain high-resolution three-dimensional (3D) structures of the
Lau Basin's magmatic systems and thermal structures, the Langseth will
deploy a towed array of 36 airguns with a total discharge volume of
approximately 6,600 cubic inches (in\3\). The array configuration
consists of four identical linear arrays or strings, with 10 airguns on
each string. L-DEO will distribute the four airgun strings across an
approximate area of 24 x 16 meters (m) (79 x 52 feet (ft)) behind the
Langseth which will tow the array approximately 50-100 m (164-328 ft)
behind the vessel at a tow-depth of 9-15 m (29.5-49.2 ft). The airgun
array will fire for a brief (0.1 second (s)) pulse every 180 s. The
array will remain silent at all other times.
The seismic study (e.g., equipment testing, startup, line changes,
repeat coverage of any areas, and equipment recovery) will take place
in deep (between 1200 and 3000 m, 3,280 feet (ft) and 1.8 miles (mi))
water and will require approximately 10 days to complete 12 transects
of variable lengths totaling 1800 km of survey lines. Data acquisition
will include approximately 240 hours of airgun operation. Please see L-
DEO's application for more detailed information. The exact dates of the
activities will depend on logistics, weather conditions, and the need
to repeat some lines if data quality is substandard.
L-DEO will conduct all geophysical data acquisition activities with
on-board assistance by the scientists who have proposed the NSF-funded
study. The scientific team consists of NSF, is conducting the
geophysical data acquisition activities with onboard assistance by Drs.
Toomey and Hooft from the University of Oregon, and Dr. Wilcock from
the University of Washington. The vessel will be self-contained, and
the crew will live aboard the vessel for the entire cruise.
NMFS has provided a more detailed description of the authorized
action, including vessel and acoustic source specifications, in a
previous notice for the proposed IHA (74 FR 21631, May 8, 2009).
Safety Radii
The distance from the sound source at which an animal would be
exposed to these different received sound levels may be estimated and
is typically referred to as safety radii. These safety radii are
specifically used to help NMFS estimate the number of marine mammals
likely to be harassed by the proposed activity and in deciding how
close a marine mammal may approach an operating sound source before the
applicant will be required to power-down or shut down the sound source.
L-DEO's acoustic models predict received sound levels in relation
to distance and direction from the 36-airgun array in order to estimate
the safety radii around their operations. L-DEO's model is based on
empirical data gathered during the acoustic calibration study of the R/
V Maurice Ewing's (Ewing) array of 20 airguns (total volume 8600 in\3\)
conducted in the northern Gulf of Mexico in 2003. L-DEO provides a more
detailed description of the modeling effort and calculations of the
safety radii in the previous notice for the proposed IHA (74 FR 21631,
May 8, 2009), Section I of L-DEO's IHA
[[Page 42863]]
application, and in Appendix A of the Environmental Assessment report
prepared by LGL Limited environmental research associates (LGL) on
behalf of NSF. NMFS has determined that the foregoing data and studies
represent the best scientific evidence available a the present time.
Using the modeled distances and various correction factors, Table 1
outlines the predicted distances at which three root mean square (rms)
sound levels (190 decibels (dB), 180 dB, and 160 dB) are expected to be
received from the 36-airgun array and a single airgun operating in
water greater than 1000 m (3,820 ft) in depth.
----------------------------------------------------------------------------------------------------------------
Predicted RMS Distances (m)
Source and Volume Tow Depth (m) --------------------------------------------------------------
190 dB 180 dB 160 dB
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Single Bolt airgun 40 in\3\ 6-15\*\ 12 40 385
4 strings 36 airguns 6600 6 220 710 4670
in\3\
9 300 950 6000
12 340 1120 6850
15 380 1220 7690
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\*\The tow depth has minimal effect on the maximum near-field output and the shape of the frequency spectrum for
the single 40 in\3\ airgun; thus the predicted safety radii are essentially the same at each tow depth.
Comments and Responses
NMFS published a notice of receipt of the L-DEO application and
proposed IHA in the Federal Register on May 8, 2009 (74 FR 21631).
During the comment period, NMFS received comments from the Marine
Mammal Commission (Commission), Cetacean Society International (CSI);
and the Wild at Heart Legal Defense Association (WAHLDA). Following are
the comments from the Commission, CSI, WAHLDA and NMFS' responses.
Comment 1: The Commission recommends that NMFS provide additional
justification for its preliminary determination that the planned
monitoring program will be sufficient to detect, with a high level of
confidence, all marine mammals within or entering the identified safety
zones; as such monitoring is essential for determining whether animals
are being taken in unanticipated ways and unexpected numbers.
Response: NMFS believes that the planned monitoring program will be
sufficient to detect (using visual detection and passive acoustic
monitoring (PAM)), with reasonable certainty, most marine mammals
within or entering identified safety radii. This monitoring, along with
the required mitigation measures (see below), will result in the least
practicable adverse impact on the affected species or stocks and will
result in a negligible impact on the affected species or stocks. The
Langseth is utilizing a team of trained marine mammal observers (MMOs)
to visually monitor marine mammals and conduct passive acoustic
monitoring (PAM).
The Langseth's high observation tower is a suitable platform for
conducting marine mammal observations. When stationed on the
observation platform, the MMO's eye level will be approximately 18 m
(59 ft) above sea level, providing a panoramic view around the entire
vessel. During the daytime, the MMO(s) will scan the area around the
vessel systematically using reticle binoculars (e.g., 7 x 50 Fujinon),
big-eye binoculars (25 x 150), and the naked eye. The platform of the
Langseth is high enough that, in good weather, MMOs can see out to 8.9
nm (16.5 km, 10.2 mi). All of the 180-dB safety radii that MMOs will
monitor during ramp-ups and power-downs are less than 2 km (1.1 nm, 1.2
mi).
MMOs will use night vision devices (NVDs) (ITT F500 Series
Generation 3 binocular-image intensifier or equivalent), during dusk or
nighttime, when required. Finally, L-DEO will provide laser
rangefinding binoculars (Leica LRF 1200 laser rangefinder or
equivalent) to MMOs to assist with distance estimation. MMOs estimate
that visual detection from the ship is between 150 and 250 m (492 and
820 ft) using NVDs and about 30 m (98.4 ft) with the naked eye, which
are affected by ambient lighting conditions, sea state, and thermal
factors.
The Langseth will complement visual observations of marine mammals
with an acoustical monitoring program. L-DEO will use a PAM system to
improve detection, identification, localization, and tracking of marine
mammals. The acoustic monitoring will alert visual observers (if on
duty) when vocalizing cetaceans are detected. When an MMO detects a
vocalization while visual observations are in progress, the acoustic
MMO will contact the visual MMO immediately, to alert him/her to the
presence of cetaceans (if they have not already been seen), and to
initiate a power down or shut down, if required.
The theoretical detection distance of this PAM system is tens of
kilometers and it has reliable detection rates out to 3 km (1.6 nm) and
more limited ability out to tens of kilometers. During the Ewing's
cruise in the Gulf of Mexico in 2003, MMOs detected marine mammals at a
distance of approximately 10 km (5.4 nm) from the vessel and identified
them to species level at approximately 5 km (2.7 nm) from the vessel,
though the bridge of that vessel was only 11 m (36 ft) above the water
(vs. the Langseth, which is 18 m (59 ft) above sea level).
The likelihood of MMOs visual detecting a marine mammal at night is
significantly lower than the ability to detect any species during the
day. However, the PAM operates equally as effective at night as during
the day, and does not depend on good visibility.
The Langseth will not start up the airguns unless the MMO can
visibly detect the safety range for the 30 minutes prior (i.e., not at
night) to start up. In all cases at night, the Langseth will already be
operating the airguns. NMFS believes that operating the airguns at
night will cause many cetaceans to avoid the vessel; thus reducing the
number of cetaceans likely to come within the safety radii.
Additionally, all of the safety radii in deep water depths are smaller
than 2 km (1.1 nm, 1.2 mi) and fall easily within the reliable
detection capabilities of the PAM.
Comment 2: The Commission recommends that NMFS clarify the
qualifier ``when feasible'' with respect to: (1) using two marine
mammal visual observers to monitor the exclusion zone for marine
mammals during daytime operations and nighttime start-ups of the
airguns; and (2) using marine mammal visual observers during daytime
periods to compare sighting rates and animal behavior during times when
the seismic airguns are operating and times when they are not.
Response: NMFS considers whether a particular mitigation is capable
of being effected, done, or executed (i.e., feasible). For this IHA,
the qualifier ``feasible'' is only applicable when the seismic system
is not operating. It does
[[Page 42864]]
not apply during seismic operations (Permit, P.5; Condition 8(a)(i).
NMFS' consideration of practicability includes (among other
relevant considerations) economic and technological feasibility (see 50
CFR 216.104(a)(11)). NMFS believes that the IHA's mitigation and
monitoring measures are complete to the fullest extent practicable, and
ensure that the takings will be limited to harassment and will result
in a negligible impact on the affected species or stocks of marine
mammals.
The Langseth is utilizing a team of trained marine mammal observers
(MMO) to both visually monitor from the high observation tower of the
Langseth and to conduct PAM. L-DEO will utilize two (except during meal
times), NMFS-qualified, vessel-based marine mammal visual observers
(MMVO) to watch for and monitor marine mammals near the seismic source
vessel during all daytime airgun operations and before and during
start-ups of airguns day or night.
MMVOs will have access to reticle binoculars (7x50 Fujinon), big-
eye binoculars (25x150), and night vision devices to scan the area
around the vessel. MMVOs will alternate between binoculars and the
naked eye to avoid eye fatigue. During all daytime periods, two MMVOs
will be on effort from the observation town to monitor greater than 90
percent of the time. During mealtimes it is sometimes difficult to have
two MMOs on effort, but at least one MMVO will be on watch during those
brief scheduled times. Three MMOs are typically on watch at a time, and
typically observe for one to three hours. Two MMVOs will also be on
watch during all nighttime start-ups of the seismic airguns. A third
MMO will be monitoring the PAM equipment 24 hours a day to detect
vocalizing marine mammals present in the action area.
Comment 3: The Commission recommends that the monitoring period
prior to the initiation of seismic activities and prior to the
resumption of airgun activities after a power-down be extended to one
hour.
Response: NMFS believes that 30 minutes is an adequate length of
time for monitoring prior to the start-up of airguns. The IHA requires
that the MMOs monitor the area for at least 30 minutes prior to
starting the airgun array (day or night) to ensure that no marine
mammals are seen within the safety zone before a seismic survey
commences. The Langseth's ramp up protocol begins with the smallest gun
in the array and adds additional airguns in a sequence such that the
source level of the array will increase in steps not exceeding
approximately 6 dB per 5-min period over a total duration of 20-30
minutes. Thus, the total time of monitoring prior to start-up of any
but the smallest array is effectively longer than 30 minutes. In many
cases MMOs are making observations during times when sonar is not being
operated and will actually be observing the area prior to the 30-minute
observation period.
Comment 4: The Commission recommends that NMFS require that
observations be made during all ramp-up procedures to gather the data
needed to analyze and provide a report on the effectiveness of this
method as a mitigation measure.
Response: The IHA requires L-DEO to submit a draft and final report
on all activities and monitoring results to the NMFS, Office of
Protected Resources, within 90 days after the expiration of the IHA.
NMFS will post the report at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm#applications.
This report: (1) must include an estimate of the number (by
species) of marine mammals that are known to have been exposed to the
seismic activity (visual observation) at received levels greater than
or equal to 160 dB re 1 microPa (rms) and/or 180 dB re 1 microPa (rms)
with a discussion of any specific behaviors those individuals
exhibited; and (2) must also include an estimate of the number of
marine mammals that may have been exposed to the seismic activity at
received levels greater than or equal to 160 dB re 1 microPa (rms) and/
or 180 dB re 1 microPa (rms) with a discussion of the nature of the
probable consequences of that exposure on the individuals that have
been exposed.
NMFS has asked NSF and L-DEO to gather all data that could
potentially provide information regarding effectiveness of ramp-ups as
a mitigation measure. However, considering the low numbers of marine
mammal sightings and low numbers of ramp-ups, it is unlikely that the
information will result in any statistically robust conclusions for
this particular seismic survey. Over the long term, these requirements
may provide information regarding the effectiveness of ramp-up as a
mitigation measure, provided animals are detected during ramp-up.
Comment 5: It is expected that Canada will have consulted and commented
on this proposal, and CSI respectfully requests a link to those
documents for review.
Response: NMFS received no comments from the Canadian government or
from any Canadian organization during the public comment period.
However, the terms and conditions of the IHA encourage NSF to
coordinate with the Canadian government regarding the proposed seismic
activity.
Comment 6: While not relevant to the MMPA, it should be noted that
12 species found nowhere else in the world have been identified at the
Endeavour Hydrothermal Vents. Given that the potential for deleterious
acoustic impacts on invertebrates from the L-DEO survey is almost
totally unknown, CSI specifically requests that NMFS require L-DEO and
the NSF to support a survey of the site sufficient to document whether
or not these extremely limited species were impacted by the experiment.
Response: NMFS' support of a post-seismic survey of invertebrates
is not germane to this Federal action under the MMPA. NMFS acknowledges
that at least 12 species are endemic to the Endeavour site. However,
the area is dynamic, and the natural variability within the
hydrothermal vents is high. Although OBS placement will disrupt a very
small area of seafloor habitat and may disturb benthic invertebrates,
the impacts are expected to be localized and transitory. NMFS does not
expect that the placement of OBS would have adverse effects beyond
naturally occurring changes in this environment, and any effects of the
planned activity on ocean and coastal habitats are expected to be
negligible.
NSF's EA (and associated report) analyzed the potential for the
seismic survey activity to affect ecosystem features and biodiversity
components, including fish, invertebrates, seabirds, and sea turtles.
NMFS' evaluation indicates that any direct or indirect effects of the
action would not result in a substantial impact on biodiversity or
ecosystem function. In particular, the potential for effects to these
resources are considered here with regard to the potential effects on
diversity or functions that may serve as essential components of marine
mammal habitats. Most effects are considered to be short-term and
unlikely to affect normal ecosystem function or predatory/prey
relationships; therefore, NMFS believes that there will not be a
substantial impact on marine life biodiversity associated with the
Endeavor hydrothermal vent, the Endeavor MPA, or on the normal function
of the nearshore or offshore environment.
Comment 7: The time between NMFS' first awareness of an L-DEO
application and the start of the scheduled survey does not allow for
significant changes to the operation without extraordinary economic
hardship on the applicant, and that creates pressure on NMFS to
[[Page 42865]]
authorize operations based on cost. CSI and others question whether
this economic and practical pressure might influence NMFS' final
decision relating to an IHA; might a project be authorized to continue,
despite a problem, because of the cost of fixing it?
Response: Section 101(a)(5)(D) of the MMPA establishes a 45-day
time limit for NMFS' review of an application followed by a 30-day
public notice and comment period on any proposed authorizations for the
incidental harassment of small numbers of marine mammals. Not later
than 45 days after the close of the public comment period, if the
Secretary makes the findings set forth in Section 101(a)(5)(D)(i) of
the MMPA, the Secretary shall issue or deny issuance of the
authorization with appropriate conditions to meet the requirements of
clause 101(a)(5)(D)(ii) of the MMPA.
The NMFS, OPR, Permits, Conservation, and Education Division has
diligently processed L-DEO's application within the statutory timeframe
(120 days) for an IHA under the MMPA. The Division deemed the
application complete on May 1, 2009; published a notice of receipt and
request for comments in the Federal Register on May 8, 2009 (74 FR
21631); and issued the IHA on August 19, 2009. NMFS received no public
comments requesting L-DEO to significantly alter the survey's schedule
or institute major operational changes.
L-DEO's proposed survey did not require substantial changes to the
cruise plan or survey tracklines. As stated in this document, NMFS
shall grant an IHA to L-DEO if NMFS finds that incidental taking of
marine mammals will have a negligible impact on the species or stock(s)
and will not have an unmitigable adverse impact on the availability of
the species or stock(s) for subsistence uses and if the permissible
methods of taking and requirements pertaining to the mitigation,
monitoring and reporting of such taking are set forth.
NMFS evaluates each IHA application independent of the cost of the
proposed action, as this is not relevant to NMFS' determination of
negligible impact or unmitigable adverse impact on the availability of
the species or stock(s) for subsistence uses.
For previously authorized IHAs, NMFS has required applicants to
reschedule cruises; to modify survey tracklines; incorporate new
temporal and spatial avoidance requirements; and to institute more
precautionary measures to mitigate against the potential effects of the
action on marine mammals.
Comment 8: L-DEO should contract openly with regional authorities
and experts during the initial planning and scheduling phase, thereby
building the project around the ``best science'' available. This
amplifies the importance of the public comment period beyond a mere
statutory requirement.
Response: NMFS acknowledges CSI's request and has forwarded your
comment to NSF and L-DEO. If a CSI representative requests to comment
on the initial planning and scheduling phases, they should discuss this
directly with a representative from NSF and L-DEO.
Comment 9: The Office of Protected Resources (OPR) has not
processed the application fast enough so that necessary changes brought
to light through the public comment period might be applied with less
onerous scheduling and operational changes.
Response: The NMFS, OPR, Permits, Conservation, and Education
Division has diligently processed L-DEO's application within the
statutory timeframe (120 days) for an IHA under the MMPA. The Division
deemed the application complete on May 1, 2009; published a notice of
receipt and request for comments in the Federal Register on May 8, 2009
(74 FR 21631); and issued the IHA on August 19, 2009. NMFS received no
public comments requesting L-DEO to significantly alter the survey's
schedule or institute major operational changes.
Comment 10: CSI recognizes that OPR may be required to supplement
an Application with an Endangered Species Act of 1973 (ESA; 16 U.S.C.
1531 et seq.) section 7 consultation, Biological Opinion and
Environmental Assessment, all of which take time. This ETOMO
Application was received February 11, 2009, the Federal Register Notice
was published May 8, 2009, and we doubt there is time between the June
8, 2009, close of public comments and the start date of August 19, 2009
for L-DEO to adjust to potentially required changes in an IHA brought
to light within the comment period. From recent experience the IHA can
be expected to be issued close to the start date, making changes even
more onerous. In other words, will an IHA be authorized in spite of
issues, because of the cost to make it right? CSI is not accusing
either OPR or L-DEO, but we are asking that even the appearance of the
potential be removed.
Response: See NMFS' response to Comment 9. NMFS disagrees with the
commenter's views on the timeliness of processing of the application.
The OPR received the application on February 11, 2009. However, the
Permits, Conservation, and Education Division (PR1) deemed the
application incomplete under the MMPA and requested additional
information from L-DEO (See 50 CFR 216.104(b)(1) which states that NMFS
must determine the adequacy and completeness of an application prior to
initiating the public review process). PR1 deemed the application
complete on May 1, 2009. Pursuant to the MMPA, NMFS published a notice
of receipt and request for comments in the Federal Register on May 8,
2009 (74 FR 21631), within one week of determining that the application
was complete. Not later than 45 days after the close of the public
comment period, if the Secretary makes the findings set forth in
Section 101(a)(5)(D)(i) of the MMPA, the Secretary shall issue or deny
issuance of the authorization with appropriate conditions to meet the
requirements of clause 101(a)(5)(D)(ii). NMFS issued the IHA on
(August19, 2009) within the required MMPA statutory timeframe of 120
days.
Regarding the ESA section 7 consultation, the Office of Protected
Resources, Endangered Species Division (PR3) determined that the
information provided by the NSF and L-DEO was sufficient to initiate
formal consultation under the ESA on April 16, 2009. On August 18,
2009, NMFS issued a Biological Opinion (BiOp) and concluded that the
issuance of the IHA was not likely to jeopardize the continued
existence of the humpback (Megaptera novaeangliae), sei (Balaenoptera
borealis), fin (Balaenoptera physalus), blue (Balaenoptera musculus),
and sperm (Physeter macrocephalus) whales. NMFS issued the BiOp within
the ESA statutory timeframe of 135 days. NMFS included the BiOp's Terms
and Conditions of the Incidental Take Statement as mitigation measures
in the IHA.
Comment 11: The solution CSI respectfully asks both OPR and NMFS
for is a longer base time between application and start date. It is
clear that L-DEO will be at this for a long time, and schedules must be
set for 2010 and beyond.
Response: See NMFS' responses to Comments 9 and 10.
Comment 12: L-DEO's current process depends almost entirely upon
the validity of the assumptions and assessments from L-DEO's in-house
and contracted analysis, which have been proven to be inadequate.
Perhaps recognizing this, L-DEO requested consultations with the South
Pacific Whale Research Consortium (SPWRC) before the Tonga survey, but
demanded
[[Page 42866]]
confidentiality, which SPWRC refused. L-DEO Tonga went on anyway,
without that expert assistance.
Response: NMFS cannot speak to L-DEO's consultations with the SPWRC
and recommends that CSI should discuss their concerns with a
representative from L-DEO.
Comment 13: The L-DEO process failed with the L-DEO TAIGER survey
in Southeast Asia, as public comments were received from concerned
regional authorities and experts about several issues. One issue
required an amended IHA, and the project was delayed accordingly, but
the literally last minute public process should not have been the
impetus. L-DEO would have precluded the issues by contracting with the
well-known experts that were forced to express their concerns only
during the public comment period. Taiwan's renewed, potentially
threatening interest in the project only came about because the
regional experts were seeking ways to have their concerns noted. Why
not just hire the local experts and start earlier?
Response: The Canadian ETOMO survey is a separate action from the
TAIGER survey. NMFS acknowledges CSI's concerns and refers the
commenter to 74 FR 41260, August 14, 2009, for information on the IHA
for the L-DEO TAIGER survey.
Comment 14: The ETOMO Application should not be ``easy'' because
there are no systematically collected data on cetacean distribution and
abundance in the proposed survey region.
Response: NMFS recognizes that absence of evidence is not the same
as having no effect or impact on the affected marine mammal species or
stocks. However, NMFS is not relying solely on absence of evidence. All
parties involved have used the best information currently available to
analyze the impacts to marine mammals as shown in: (1) the Federal
Register notice for the receipt of L-DEO's application (74 FR 21631,
May 8, 2009); (2) the EA; (3) the BiOp and ITS; and (4) numerous and
salient public comments received by NMFS during the public comment
period. Based on the evidence cited, NMFS concludes that the proposed
seismic surveys would have a negligible impact on the affected species
or stocks of marine mammals and are not likely to jeopardize the
continued existence of any ESA-listed species.
Comment 15: The absence of specific data elevates the value of
Kristin Kaschner's Ph.D. thesis, ``Modelling and mapping resource
overlap between marine mammals and fisheries on a global scale,''
(2004) which maps suitable habitat for marine mammals around the world,
ranking the Relative Environmental Suitability (RES) for each species.
Kaschner shows that the Endeavour MPA offers highly suitable habitat
for several species for which the daylight visual observation
mitigation measures are inadequate. She predicts that the habitat is
likely to support sei and sperm whales, which were caught in the region
historically. She predicts that the habitat is likely to support poorly
studied beaked whales (especially Cuvier's [Ziphius cavirostris]),
which are thought to be susceptible to seismic survey impacts. And she
predicts that the study area offers good quality habitat for species
known to be recovering from 20th century commercial whaling, namely
fin, humpback and sperm whales. But this data is not ``real.''
Response: NMFS thanks the commenter for this information and
considers all relevant public comments before making a determination on
the issuance of the IHA. A detailed discussion of the potential effects
of this action on marine mammal habitat, was included in the notice of
the proposed IHA (74 FR 21631, May 8, 2009). Based on the discussion in
the proposed IHA notice, the authorized operations are not expected to
have any habitat-related effects that could cause significant or long-
term consequences for individual marine mammals or their populations or
stocks and will not result in any permanent impact on habitats used by
marine mammals, or to the food sources they use. The main impact issue
associated with the proposed activity will be temporarily elevated
noise levels and the associated direct effects on marine mammals.
Please note that NMFS' Biological Opinion concludes that the
issuance of the IHA was not likely to jeopardize the continued
existence of the humpback), sei, fin, blue, and sperm (Physeter
macrocephalus) whales.
Comment 16: While science continues to search for ways to get the
necessary data, L-DEO and NSF will continue to believe that their
seismic surveys have no significant effect. It is expected that NMFS
will find ``that the taking will have a negligible impact on the
species or stock(s)'' despite the lack of real information. The absence
of proof of harm is not the same as proving that there is no harm.
Response: See NMFS' response to Comment 14.
Comment 17: First, it has not been adequately explained in the
Draft Environmental Assessment why the ``No Action'' alternative might
be rejected in favor of the project, which, according to the
proponent's own assessment, has the potential to harass several
thousand cetaceans, including eight species described in the notice as
being listed as endangered under the U.S. Endangered Species Act. That
the acquisition of data concerning one natural phenomenon (e.g. ``the
sub-seafloor structure of volcanic and hydrothermal features that form
as a result of movements of the Earth's plates'' (DEA, p2)) should
increase the threat to the existence of another natural phenomenon
(e.g. a species of whale) of equally great (if less generously funded)
academic interest is an illogical and tragic course of action. It
should be noted that it has not been proven that knowledge of the sub-
seafloor structure is of greater long-term importance for the
continuation of human life on Earth than the biodiversity upon which we
are very much dependent.
Response: The commenter's statements on assessing the value of
acquiring information on one natural phenomena (geophysical) versus
another natural phenomena (biodiversity) are not germane to NMFS'
federal action the issuance of an MMPA authorization to L-DEO. Under
section 101(a)(5)(D) of the MMPA, NMFS is required to determine whether
the taking by the applicant's specified activity will have a negligible
impact on the affected marine mammal species or population stocks.
Alternatives assessments are NMFS' responsibility under NEPA, not the
MMPA. In that regard, the NSF's EA and associated EA report contain
adequate information on the alternatives No Action, Another Time, and
Preferred Action. The associated EA report provides a step-by-step
analysis on how the NSF assessed the alternatives, starting with (and
citing) the best scientific information available on marine mammal
distribution and abundance and using those data to make conservative
estimates on levels of take by harassment and reasonable assumptions on
why no marine mammals are likely to be harassed by this survey.
Comment 18: The assessment carried out by LGL for this L-DEO
project must be treated with caution given the very recent experience
of the L-DEO seismic survey currently underway in the waters of
southeast Asia, for which LGL prepared an EA that understated the
numbers of cetaceans of certain species that might be exposed to airgun
noise and the level of potential harassment, misquoted the status of at
least one critically endangered population of cetaceans (the Eastern
Taiwan Strait (ETS) Indo-Pacific humpback dolphins) and resulted in
transect lines running
[[Page 42867]]
directly through the narrow habitat of the ETS humpback dolphins and
the scheduling of surveys near the Philippines that coincided
``spatially and temporally with the northward migration of mothers with
neonatal and other young calves'' (Anon, 2009), to cite a few of the
concerns raised by scientists and NGOs during the comment period for
that project (e.g. http://www.nmfs.noaa.gov/pr/pdfs/permits/taiger_comments.pdf).
Response: NMFS acknowledges WAHLDA's concerns and refers the
commenter to 74 FR 41260, August 14, 2009, for information on the L-DEO
TAIGER survey.
NMFS closely follows NEPA regulations and NOAA Administrative Order
216-6 (Environmental Review Procedures for Implementing the National
Environmental Policy Act, May 20, 1999) before making a determination
on whether it will adopt another Federal agency's NEPA document, or
prepare its own. Critical to this determination is the quality of
another agency's NEPA document, whether it fully addresses the action
proposed by NMFS the issuance of an MMPA authorization to L-DEO, and
whether NMFS' proposed action is significant as defined in 40 CFR
1508.27 and NAO 216-6, section 6.01. As noted in the proposed
authorization notice (74 FR 21631, May 8, 2009), the DEA contained a
complete description of the proposed action and identified alternatives
to that action; a description of the affected environment; an
assessment of impacts, including unavoidable impacts, indirect impacts
and cumulative impacts; and the measures proposed to reduce impacts to
the lowest level practicable. In accordance with NAO 216-6, NMFS has
reviewed the information contained in NSF's EA, and associated EA
report, and determined that, while it accurately and completely
describes the alternatives and the potential impacts, endangered
species and other marine life could be impacted by the survey
activities. As a result, NMFS has identified additional mitigation
measures (e.g., mandatory shut-downs for north Pacific right whales)
which are reflected in the final IHA and the NMFS' Finding of No
Significant Impact (FONSI).
Comment 19: An additional, independent scientific review body is
urgently needed in order to improve the quality of environmental
assessment and recommended actions for this and all other seismic
surveys.
Response: NMFS acknowledges WAHLDA's request and has forwarded your
comment to NSF and L-DEO.
Comment 20: The safety radii for this project are used to decide
how close a marine mammal may approach an operating sound source before
a power-down or shut down is required. With detection of marine mammals
being dependent upon the success of visual and acoustic monitoring, it
is clearly essential that both forms of monitoring are carried out in
such a way as to maximize the potential of detection. However, the
description of the monitoring plans described in the FR notice suggest
once again that worryingly minimal efforts to detect cetaceans will be
made.
Response: See NMFS' response to Comment 1. The Langseth is
utilizing a team of trained (MMVOs) to both visually monitor from the
high observation tower of the Langseth and to conduct passive acoustic
monitoring. When stationed on the observation platform of the Langseth,
the MMVO's eye level will be approximately 17.8 m (58.4 ft) above sea
level, so the visible distance (in good weather) to the horizon is 8.9
nm (16.5 km) (the largest safety radii is 7.7 km (4.2 nm)). Big eyes
are most effective at scanning the horizon (for blows), while 7 x 50
reticle binoculars are more effective closer in (MMVOs also scan the
area with the naked eye). Additionally, MMVOs will have a good view in
all directions around the entire vessel.
Under section 101(a)(5)(D) of the MMPA, NMFS is required to
determine whether the taking by the applicant's specified activity will
have a negligible impact on the affected marine mammal species or
population stocks. The monitoring and mitigation measures set forth in
the IHA ensure that there will be negligible impacts on the marine
mammals. Cetaceans are expected, at most, to show an avoidance response
to the seismic pulses. Mitigation measures such as visual marine mammal
monitoring, and shut-downs when marine mammals are detected within the
defined ranges should further reduce short-term reactions to
disturbance, and minimize any effects on hearing sensitivity.
Comment 21: With a minimum of only one marine mammal visual
observer (MMVO) being required to be on duty during all daytime airgun
operations, and only two observers being required to be on duty for
only thirty minutes before and during ramp-ups (``and when possible at
other times'' (DEA, p.3)) is clearly not a commitment) the chances of
detecting cetaceans in the area (including the exclusion zone) within
which they may be harassed (including level A and level B harassment)
will be limited. Neither one nor two pairs of eyes will be capable of
effectively scanning all areas around the Langseth simultaneously for
cetaceans and turtles that is, if the aim of this measure truly is to
attempt to minimize impacts on cetaceans and turtles. There should at
least be a sufficient number of qualified, experienced visual observers
to simultaneously cover all areas of water within the safety radii on
duty during all periods of use of noise-generating seismic survey
equipment (including before and during ramp-ups and at all other times
of use).
Response: The IHA requires L-DEO to utilize two (except during meal
times), NMFS-qualified, vessel-based marine mammal visual observers
(MMVO) to watch for and monitor marine mammals near the seismic source
vessel during all daytime airgun operations and before and during
start-ups of airguns day or night. See NMFS' response to Comments 1 and
2 for a discussion of visual and acoustic monitoring of the safety
radii.
Comment 22: The idea that passive acoustic monitoring (PAM) should
be used during the day and night ``when practicable'' (DEA, p. 3) again
suggests a reluctance to commit to applying these measures to their
greatest capability, and a level of leniency that leaves room for
almost unlimited exceptions. If L-DEO is serious about carrying out
this seismic survey at the risk of harassing more than thirty marine
mammal species and intends to attempt to mitigate potential impacts to
the (already extremely limited) extent that it can, it should at least
be committed to use PAM at all times during the survey, with no
exceptions. (The operators' need for rest, food or other activities can
be dealt with by increasing the number of (qualified and experienced)
staff on duty and should not be used as a justification for lower
effort to detect cetaceans using PAM).
Response: The IHA requires that L-DEO operates the PAM system both
during the day and at night. The requirement of PAM for marine mammal
detection is intended to provide additional monitoring to the standard
visual monitoring by qualified MMVOs. PAM is not to be solely used for
marine mammal monitoring and detection for the survey and will not
replace visual monitoring. NMFS believes that L-DEO will be able to
effectively monitor out to the 180 dB isopleth.
Comment 23: More worrying still is the fact that there appears,
once again, to be no restriction against using the seismic survey
equipment in the dark or ``at night''. The continuation of seismic
survey activity outside of daylight hours severely reduces the already
limited possibility of detecting cetaceans in the
[[Page 42868]]
vicinity, and effectively reduces monitoring efforts to the use of PAM,
which will obviously not detect cetaceans when they are not vocalizing
and will at certain times only be used ``when practicable''. It is
strongly recommended that no seismic survey activity be carried out
outside of daylight hours during which the entire safety radii are
visible.
Response: The IHA requires that L-DEO operates the PAM system both
during the day and at night. Regarding cessation of seismic activity at
night, L-DEO has considered this recommendation, and has decided that
it is not feasible, as limiting the surveys to daytime only would
either result in the loss of half of the data or would necessitate
doubling the duration of the project. Doubling the duration of the
surveys is not possible because the Langseth has other research
commitments after the Endeavor cruise. For seismic operators in
general, a daylight-only requirement would be expected to result in one
or more of the following outcomes: cancellation of potentially valuable
seismic surveys, reduction in the total number of seismic cruises
annually due to longer cruise durations, a need for additional vessels
to conduct the seismic operations, or work conducted by non-U.S.
operators or non-U.S. vessels when in waters not subject to U.S. law.
The IHA prohibits the start of the seismic source if the MMVOs
cannot view the entire safety radius for any reason (darkness, fog, or
rough seas). Thus, limiting seismic shooting to only daylight hours is
unnecessary and unlikely to result in less Level B harassment to marine
mammals than would conducting 24-hour survey operations. MMVOs using
night vision devices (NVD) will be on watch during periods prior to and
during a ramp-up at night. At other times during the night MMOs will be
available, but it is not necessary or very effective for them to be on
watch constantly. The use of PAM will improve the detection of marine
mammals by indicating to the MMVOs when an animal is potentially near
and prompting a power-down or shut-down when necessary. Marine mammals
are unlikely to be injured, seriously injured or killed by the noise
from approaching seismic arrays nor is it authorized.
Because of the need to keep a vessel at-speed in order to
successfully tow the hydrophone streamers, the vessel would need to be
underway throughout the night whether or not the airguns are fired at
night. Additional down-time could be anticipated each day as the vessel
maneuvers all night to come back to the shut-down location 30 minutes
after daylight. This is unlikely to be successful very often and will
likely result in additional time needed for surveys to be completed.
Taking into consideration the additional costs of prohibiting
nighttime operations and the likely low impact of the activity (given
the required monitoring and mitigation measures), NMFS has determined
that the IHA's requirements will ensure that the activity will have the
least practicable impact on the affected species or stocks for the
following reasons. Marine mammals will have sufficient notice of a
vessel approaching with operating seismic airguns, thereby giving them
an opportunity to avoid the approaching array.
Comment 24: The suggestion in the DEA that ``additional research
studies planned on the vessel for 2009 and beyond'' should be a major
deciding factor in whether the survey can be rescheduled (which was
also used as an argument to support night-time surveys for the SE Asia
seismic survey) is not considered a scientifically sound or otherwise
reasonable justification for reducing already limited impact mitigation
measures. Scheduling should be based on the necessary impact mitigation
measures, not vice versa.
Response: Under section 101(a)(5)(D) of the MMPA, NMFS is required
to determine whether the taking by the applicant's specified activity
will have a negligible impact on the affected marine mammal species or
population stocks. NMFS believes that L-DEO's revised survey as well as
the implementation of the required monitoring and mitigation measures
described in the IHA will have a negligible impact on the affected
species or stocks of marine mammals in the study area.
As discussed in the EA report, the scheduling of the Langseth makes
the best use of the vessel to support NSF's science mission. In the EA,
NSF concluded that L-DEO rescheduling the survey to an alternative time
would offer minimal advantages or disadvantages at the Endeavor
location. Thus, for the reasons stated throughout the text of this
notice, NMFS believes that the agency is in compliance with both the
MMPA and NEPA.
Description of Marine Mammals in the Activity Area
Thirty-three marine mammal species may occur off the coast of
British Columbia, Canada, including 20 odontocetes (toothed cetaceans),
7 mysticetes (baleen whales), 5 pinnipeds, and the sea otter (Enhydra
sp.). In the United States, sea otters are managed by the U.S. Fish and
Wildlife Service (USFWS) and are unlikely to be encountered in or near
the Endeavor Marine Protected Area where seismic operations will occur,
and are, therefore, not addressed further in this document. Eight of
these species are listed as endangered under the U.S. Endangered
Species Act of 1973 (ESA), including the Steller sea lion (Eumetopias
jubatus), the humpback sei, fin, blue, North Pacific right (Eubalena
japonica), sperm, and Southern Resident killer (Orcinus orca) whales.
This IHA will only address requested take authorizations for
cetaceans and pinnipeds. Table 2 below outlines the species, their
habitat and abundance in the proposed survey area, and the estimated
exposure levels. Additional information regarding the status and
distribution of the marine mammals in the area as well as how L-DEO
calculated the densities were included in a previous notice for the
proposed IHA (74 FR 21631, May 8, 2009) and in Sections III and IV of
L-DEO's application.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated Number of
Abundance in the NE Occurrence in the Individuals Exposed Approx. Percent
Species Habitat Pacific Survey Area to Sound Levels of Regional
[gteqt]160 dB Population
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Pacific right whale* Coastal and shelf waters 100-200 Rare and unlikely 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Humpback whale* Coastal waters >6000 Uncommon 6 0.10
--------------------------------------------------------------------------------------------------------------------------------------------------------
Minke whale Coastal and shelf waters 9000 Uncommon 5 0.06
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sei whale* Pelagic 7260 - 12,620 Uncommon 1 0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 42869]]
Fin whale* Pelagic, shelf and coastal 13,620-18,680 Uncommon 8 0.05
waters
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale* Pelagic, shelf and inshore 1186 Uncommon 2 0.14
waters
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm whale* Pelagic 24,000 Uncommon 10 0.04
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pygmy sperm whale Deep waters off the shelf Not available Common 9 Not available
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dwarf Sperm whale Deep waters off the shelf Not available Uncommon 0 0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Baird's beaked whale Deep waters and cont. 6000 Common 13 0.21
slopes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blainville's beaked whale Deep waters and cont. 603 Uncommon 2 0.28
slopes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cuvier's beaked whale Pelagic 20,000 Uncommon 0 0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Hubb's beaked whale Deep waters and cont. 421 Uncommon 2 0.40
slopes
--------------------------------------------------------------------------------------------------------------------------------------------------------
Stejneger's beaked whale Deep waters 421 Uncommon 2 0.40
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bottlenose dolphin Coastal and offshore waters 3257 Rare 0 0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Striped dolphin Pelagic 23,883 Rare 0 0.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Short-beaked common dolphin Coastal and offshore waters 487,622 Common 104 0.02
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pacific white-sided dolphin Pelagic, shelf and slope 931,000 Common 181 0.02
waters
--------------------------------------------------------------------------------------------------------------------------------------------------------
Northern right-whale dolphin Pelagic, shelf and slope 15,305 Common 142 0.93
waters
--------------------------------------------------------------------------------------------------------------------------------------------------------
Risso's dolphin Pelagic 12,093 Common 95 0.78
--------------------------------------------------------------------------------------------------------------------------------------------------------
False killer whale Pelagic Not available Rare 0 NA
--------------------------------------------------------------------------------------------------------------------------------------------------------
Killer whale Widely distributed 8500 Uncommon 12 0.15
--------------------------------------------------------------------------------------------------------------------------------------------------------
Short-finned pilot whale Pelagic 160,200 Uncommon 0 00.0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Dall's porpoise Offshore and nearshore 57,549 Common 1081 1.88
waters
--------------------------------------------------------------------------------------------------------------------------------------------------------
Northern fur seal Coastal 721,935 Common 73 0.01
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total ........................... ....................... ...................... 1,748 .................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 2. Abundance, preferred habitat, and commonness of the marine mammal species that may be encountered during the proposed survey within the ETOMO
survey area. The far right columns indicate the estimated number and percentage of the population of each species that may be exposed to sound levels
[gteqt]160 dB based on average density estimates. NMFS believes that, when mitigation measures are taken into consideration, the activity is likely to
result in take of numbers of animals less than those indicated by the column titled Estimated Number of Individuals Exposed to Sound Levels [gteqt]160
dB.
* Federally listed endangered species.
Potential Effects of the Proposed Activity on Marine Mammals
The effects of sounds from airguns might include one or more of the
following: tolerance, masking of natural sounds, behavioral
disturbance, temporary or permanent hearing impairment, or non-auditory
physical or physiological effects (Richardson et al., 1995; Gordon et
al., 2004; Nowacek et al., 2007; Southall et al., 2007). Permanent
hearing impairment, in the unlikely event that it occurred, would
constitute injury, but temporary threshold shift (TTS) is not an injury
(Southall et al., 2007). Although the possibility cannot be entirely
excluded, it is unlikely that the project would result in any cases of
temporary or permanent hearing impairment, or any significant non-
auditory physical or physiological effects. Some behavioral disturbance
is expected, but is expected to be localized and short-term.
[[Page 42870]]
The notice of the proposed IHA (74 FR 21631, May 8, 2009) included
a discussion of the effects of sounds from airguns on mysticetes
(baleen whales), odontocetes (toothed whales), and pinnipeds including
tolerance, masking, behavioral disturbance, hearing impairment, and
other non-auditory physical effects. Additional information on the
behavioral reactions (or lack thereof) by all types of marine mammals
to seismic vessels is discussed in Appendix B of L-DEO's application.
The notice of the proposed IHA also included a discussion of the
potential effects of the multibeam echosounder (MBES) and the sub-
bottom profiler (SBP). Because of the shape of the beams of these
sources and their power, NMFS believes it unlikely that marine mammals
will be exposed to either the MBES or the SBP at levels at or above
those likely to cause harassment. Further, NMFS believes that the brief
exposure of cetaceans or pinnipeds to few signals from the multi-beam
bathymetric sonar system is not likely to result in the harassment of
marine mammals.
Estimated Take by Incidental Harassment
The notice of the proposed IHA (74 FR 21631, May 8, 2009) included
an in-depth discussion of the methods used to calculate the densities
of the marine mammals in the area of the seismic survey and the take
estimates. Based on numbers of animals encountered during previous L-
DEO seismic surveys, the likelihood of the successful implementation of
the required mitigation measures, and the likelihood that some animals
will avoid the area around the operating airguns, NMFS believes that L-
DEO's airgun seismic testing program may result in the Level B
harassment of some lower number of individual marine mammals (a few
times each) than is indicated by the column titled, Estimated Number of
Individuals Exposed to Sound Levels [gteqt]160 dB, in Table 2. L-DEO
has asked for authorization for take of their ``best estimate'' of
numbers for each species. Though NMFS believes that take of the
requested numbers is unlikely, we still find these numbers small
relative to the population sizes.
Estimates of the numbers of marine mammals that might be affected
are based on consideration of the number of marine mammals that could
be disturbed appreciably by approximately 1800 km of seismic surveys
during the proposed seismic program in the ETOMO study area. The
estimates of exposures to various sound levels assume that the surveys
will be completed; in fact, the planned number of line-kilometers has
been increased by 25 percent to accommodate lines that may need to be
repeated, equipment testing, etc.
All anticipated ``takes by harassment'' authorized by this IHA are
Level B harassment only, involving temporary changes in behavior.
Because of the required implementation of mitigation measures and the
likelihood that some cetaceans will avoid the area around the operating
airguns of their own accord, NMFS does not expect any marine mammal to
approach the sound source close enough to be injured (Level A
harassment). Given these considerations, the predicted number of marine
mammals that might be exposed to sounds at or greater than 160 dB may
be somewhat overestimated. Thus, the following estimates of the numbers
of marine mammals potentially exposed to sounds equal to or greater
than 160 dB are precautionary, and probably overestimate the actual
numbers of marine mammals that might be exposed.
Potential Effects on Habitat
A detailed discussion of the potential effects of this action on
marine mammal habitat, was included in the notice of the proposed IHA
(74 FR 21631, May 8, 2009). Based on the discussion in the proposed IHA
notice, the authorized operations are not expected to have any habitat-
related effects that could cause significant or long-term consequences
for individual marine mammals or their populations or stocks and will
not result in any permanent impact on habitats used by marine mammals,
or to the food sources they use. The main impact issue associated with
the proposed activity will be temporarily elevated noise levels and the
associated direct effects on marine mammals.
The Langseth will deploy and retrieve approximately 64 OBS. The OBS
anchors will remain upon equipment recovery. Although OBS placement
will disrupt a very small area of seafloor habitat and may disturb
benthic invertebrates, the impacts are expected to be localized and
transitory. The vessel will deploy the OBS in such a way that creates
the least disturbance to the area. Thus, it is not expected that the
placement of OBS would have adverse effects beyond naturally occurring
changes in this environment, and any effects of the planned activity on
marine mammal habitats and food resources are expected to be
negligible.
Monitoring and Mitigation Measures
Mitigation and monitoring measures required to be implemented for
the proposed seismic survey have been developed and refined during
previous L-DEO seismic survey studies and associated environmental
assessments, IHA applications, and IHAs. The mitigation and monitoring
measures described herein represent a combination of the procedures
required by past IHAs for other similar projects and on recommended
best practices in Richardson et al. (1995), Pierson et al. (1998), and
Weir and Dolman (2007). The measures are described in detail below this
section.
Required mitigation measures include: (1) safety radii; (2) speed
or course alteration, provided that doing so will not compromise
operational safety requirements; (2) power-down procedures; (3)
shutdown procedures; (4) ramp-up procedures; and (5) special procedures
for nighttime and low-light hour operations.
Vessel-based Visual Monitoring
Vessel-based marine mammal visual observers (MMVOs) will be based
aboard the seismic source vessel and will watch for marine mammals near
the vessel during daytime airgun operations and during start-ups of
airguns at night. MMVOs will also watch for marine mammals near the
seismic vessel for at least 30 minutes prior to the start of airgun
operations and after an extended shutdown of the airguns (i.e., 9
minutes). When feasible, MMVOs will also make observations during
daytime periods when the seismic system is not operating for comparison
of animal abundance and behavior. Based on MMVO observations, airguns
will be powered down, or if necessary, shut down completely (see
below), when marine mammals are detected within or about to enter a
designated safety radius corresponding to 180-dB isopleths. The MMVOs
will continue to maintain watch to determine when the animal(s) are
outside the safety radius, and airgun operations will not resume until
the animal has left that zone. The predicted distances for the safety
radii are listed according to the sound source, water depth, and
received isopleth in Table 1.
During seismic operations in the northeast Pacific Ocean, at least
three visual observers and one bioacoustician will be based aboard the
Langseth. MMVOs will be appointed by L-DEO with NMFS' concurrence. At
least two MMVOs (except during meal times) will monitor the safety
radii for marine mammals during daytime operations and nighttime
startups of the airguns. The use of two simultaneous MMVOs will
increase the proportion of the animals present near the source vessel
that are detected. The MMVO(s) will be on duty in shifts of duration no
longer
[[Page 42871]]
than 4 hours. The vessel crew will also be instructed to assist in
detecting marine mammals and implementing mitigation requirements (if
practical). Before the start of the seismic survey the crew will be
given additional instruction regarding how to do so.
The Langseth's high observation tower is a suitable platform for
conducting marine mammal and turtle observations. When stationed on the
observation platform, the MMOV's eye level will be approximately 18 m
(59 ft) above sea level, providing a panoramic view around the entire
vessel. During the daytime, the MMO(s) will scan the area around the
vessel systematically using reticle binoculars (e.g., 7 x 50 Fujinon),
big-eye binoculars (25 x 150), and the naked eye. The platform of the
Langseth is high enough that, in good weather, MMOs can see out to 8.9
nm (16.5 km, 10.2 mi). All of the 180-dB safety radii that MMOs will
monitor during ramp-ups and power-downs are less than 2 km (1.1 nm, 1.2
mi).
MMOs will use night vision devices (NVDs) (ITT F500 Series
Generation 3 binocular-image intensifier or equivalent), during dusk or
nighttime, when required. Finally, L-DEO will provide laser
rangefinding binoculars (Leica LRF 1200 laser rangefinder or
equivalent) to MMOs to assist with distance estimation. MMOs estimate
that visual detection from the ship is between 150 and 250 m (492 and
820 ft) using NVDs and about 30 m (98.4 ft) with the naked eye, which
are affected by ambient lighting conditions, sea state, and thermal
factors.
Passive Acoustic Monitoring
PAM will take place to complement the visual monitoring program.
Acoustic monitoring can be used in addition to visual observations to
improve detection, identification, localization, and tracking of
cetaceans. It is only useful when marine mammals call, but it can be
effective either by day or by night and does not depend on good
visibility. The acoustic monitoring will serve to alert visual
observers when vocalizing cetaceans are detected. It will be monitored
in real time so visual observers can be advised when cetaceans are
detected. When bearings (primary and mirror-image) to calling
cetacean(s) are determined, the bearings will be relayed to the visual
observer to help him/her sight the calling animal(s).
The PAM system consists of hardware (i.e., hydrophones) and
software. The ``wet end'' of the system consists of a low-noise, towed
hydrophone array that is connected to the vessel by a ``hairy'' faired
cable. The array will be deployed from a winch located on the back
deck. A deck cable will connect from the winch to the main computer lab
where the acoustic station and signal condition and processing system
will be located. The lead-in from the hydrophone array is approximately
400 m (1,312 ft) long, and the active part of the hydrophone is
approximately 56 m (184 ft) long. The hydrophone array is typically
towed at depths of 20 m (65.6 ft).
The towed hydrophone array will be monitored 24 hours per day while
at the survey area during airgun operations and also during most
periods when the Langseth is underway with the airguns not operating.
One MMO and/or bioacoustician will monitor the acoustic detection
system at any one time, by listening to the signals from two channels
via headphones and/or speakers and watching the real time
spectrographic display for frequency ranges produced by cetaceans. MMOs
monitoring the acoustical data will be on shift for 1-6 hours. Of the
three observers required on board, one will have primarily
responsibility for PAM during the seismic survey. However, all MMOs are
expected to rotate through the PAM position, although the most
experienced with acoustics will be on PAM duty more frequently.
When a vocalization is detected, the acoustic MMO will, if visual
observations are in progress, contact the MMVO immediately to alert
him/her to the presence of the vocalizing marine mammal(s) (if they
have not already been seen), and to allow a power down or shutdown to
be initiated, if required. The information regarding the call will be
entered into a database. The data to be entered includes an acoustic
encounter identification number, whether it was linked with a visual
sighting, date, time when first and last heard and whenever any
additional information was recorded, position and water depth when
first detected, bearing if determinable, species or species group
(e.g., unidentified dolphin, sperm whale), types and nature of sounds
heard (e.g., clicks, continuous, sporadic, whistles, creaks, burst
pulses, strength of signal, etc.), and any other notable information.
The acoustic detection can also be recorded for further analysis.
Speed or Course Alteration - If a marine mammal is detected outside
the safety radius and, based on its position and the relative motion,
is likely to enter the safety radius or exclusion zone (EZ), the
vessel's speed and/or direct course may be changed. This would be done
if practicable while minimizing the effect on the planned science
objectives. The activities and movements of the marine mammal(s)
(relative to the seismic vessel) will then be closely monitored to
determine whether the animals is approaching the applicable EZ. If the
animal appears likely to enter the EZ, further mitigation actions will
be taken, i.e., either further course alterations or a power down or
shut down of the airguns. Typically, during seismic operations, major
course and speed adjustments are often impractical when towing long
seismic streamers and large source arrays, thus alternative mitigation
measures (see below) will need to be implemented.
Power-down Procedures - A power-down involves reducing the number
of operating airguns in use to minimize the exclusion zone, so that
marine mammals are no longer in or about to enter this zone. A power-
down of the airgun array to a reduced number of operating airguns may
also occur when the vessel is moving from one seismic line to another.
During a power down for mitigation, one airgun will be operated. The
continued operation of at least one airgun is intended to alert marine
mammals to the presence of the seismic vessel in the area. In contrast,
a shut down occurs when all airgun activity is suspended.
If a marine mammal is detected outside the safety radii but is
likely to enter it, and if the vessel's speed and/or course cannot be
changed to avoid the animal(s) entering the EZ, the airguns will be
powered down to a single airgun before the animal is within the EZ.
Likewise, if a mammal is already within the EZ when first detected, the
airguns will be powered down immediately. During a power down of the
airgun array, the 40-in\3\ airgun will be operated. If a marine mammal
is detected within or near the smaller safety radii around that single
airgun (see Table 1 above), all airguns will be shutdown (see next
subsection).
Following a power down, airgun activity will not resume until the
marine mammal is outside the safety radius for the full array. The
animal will be considered to have cleared the safety radius if it:
(1) Is visually observed to have left the safety radius; or
(2) Has not been seen within the safety radius for 15 minutes in
the case of small odontocetes or pinnipeds; or
(3) Has not been seen within the safety radius for 30 minutes in
the case of mysticetes and large odontocetes, including sperm, pygmy
sperm, dwarf sperm, and beaked whales; or
During airgun operations following a power-down (or shut-down) and
subsequent animal departure as above, the airgun array will resume
operations following ramp-up procedures described below.
[[Page 42872]]
Shutdown Procedures - The operating airgun(s) will be shut down if
a marine mammal is detected within or approaching the safety radius for
the then-operating single 40 in\3\ airgun while the airgun array is at
full volume or during a power down. Airgun activity will not resume
until the marine mammal has cleared the safety radius or until the MMO
is confident that the animal has left the vicinity of the vessel.
Criteria for judging that the animal has cleared the safety radius will
be as described in the preceding subsection.
Ramp-up Procedures - A ramp-up procedure will be followed when the
airgun array begins operating after more than nine minutes without
airgun operations or when a power-down has exceeded nine minutes. This
period is based on the modeled 180-dB radius for the 36-airgun array
(see Table 1) in relation to the planned speed of the Langseth while
shooting. Similar periods (approximately eight to 10 minutes) were used
during previous L-DEO surveys.
Ramp-up will begin with the smallest airgun in the array (40
in\3\). Airguns will be added in a sequence such that the source level
of the array will increase in steps not exceeding 6 dB per 5-minute
period over a total duration of approximately 20 to 25 minutes. During
ramp-up, the MMVOs will monitor the safety radius, and if marine
mammals are sighted, a course/speed change, power down, or shutdown
will be implemented as though the full array were operational.
If the complete safety radius has not been visible for at least 30
minutes prior to the start of operations in either daylight or
nighttime, ramp-up will not commence unless at least one airgun (40
in\3\ or similar) has been operating during the interruption of seismic
survey operations. Given these provisions, it is likely that the airgun
array will not be ramped up from a complete shut down at night or in
thick fog, because the other part of the safety radius for that array
will not be visible during those conditions. If one airgun has operated
during a power down period, ramp up to full power will be permissible
at night or in poor visibility, on the assumption that marine mammals
will be alerted to the approaching seismic vessel by the sounds from
the single airgun and have the opportunity to move away. Ramp up of the
airguns will not be initiated if a marine mammal is sighted within or
near the applicable safety radius during the day or close to the vessel
at night.
MMVO Data and Documentation
MMVOs will record data to estimate the numbers of marine mammals
exposed to various received sound levels and to document any apparent
disturbance reactions or lack thereof. Data will be used to estimate
the numbers of mammals potentially ``taken'' by harassment. They will
also provide information needed to order a power-down or shutdown of
airguns when marine mammals are within or near the relevant safety
radius. When a sighting is made, the following information about the
sighting will be recorded:
(1) Species, group size, age/size/sex categories (if determinable),
behavior when first sighted and after initial sighting, heading (if
consistent), bearing and distance from seismic vessel, sighting cue,
apparent reaction to the airguns or vessel (e.g., none, avoidance,
approach, paralleling, etc. and including responses to ramp-up), and
behavioral pace.
(2) Time, location, heading, speed, activity of the vessel
(including number of airguns operating and whether in state or ramp-up,
power-down, or full power), sea state, visibility, cloud cover, and sun
glare.
The data listed under (2) will also be recorded at the start and
end of each observation watch and during a watch, whenever there is a
change in one or more of the variables.
All observations, as well as information regarding airgun power
down and shutdown, will be recorded in a standardized format. Data will
be entered into a custom electronic database. The accuracy of data will
be verified by computerized data validity checks as the data are
entered and by subsequent manual checking of the database. Preliminary
reports will be prepared during the field program and summaries
forwarded to the operating institution's shore facility and to NSF
weekly or more frequently. MMO observations will provide the following
information:
(1) The basis for decisions about powering down or shutting down
airgun arrays.
(2) Information needed to estimate the number of marine mammals
potentially ``taken by harassment.'' These data will be reported to
NMFS per terms of MMPA authorizations or regulations.
(3) Data on the occurrence, distribution, and activities of marine
mammals in the area where the seismic study is conducted.
(4) Data on the behavior and movement patterns of marine mammals
seen at times with and without seismic activity.
Reporting
A draft report will be submitted to NMFS within 90 days after
expiration of the IHA. The report will describe the operations that
were conducted and sightings of marine mammals near the operations. The
report will be submitted to NMFS, providing full documentation of
methods, results, and interpretation pertaining to all monitoring and
mitigation. The 90-day draft report will summarize the dates and
locations of seismic operations (dates, times, locations, heading,
speed, weather, sea state, activities), and all marine mammal sightings
(dates, times, locations, species, behavior, number of animals,
associated seismic survey activities).
The report will also include the estimates of the amount and nature
of potential ``take'' of marine mammals by harassment or in other ways,
as well as a description of the implementation and effectiveness of the
monitoring and mitigation measures of the IHA and Biological Opinion's
(BiOp) Incidental Take Statement. L-DEO is then required to submit a
final report within 30 days after receiving comments from NMFS on the
draft report.
Endangered Species Act (ESA)
Pursuant to section 7 of the ESA, NSF has consulted with the NMFS,
Office of Protected Resources, Endangered Species Division on this
seismic survey. NMFS Headquarters' Office of Protected Resources,
Permits, Conservation, and Education Division has also consulted
internally pursuant to section 7 of the ESA on the issuance of an IHA
under section 101(a)(5)(D) of the MMPA for this activity. On August 18,
2009, NMFS issued a BiOp and concluded that the issuance of an IHA is
not likely to jeopardize the continued existence of blue, fin, sei,
humpback, and sperm whales, leatherback sea turtles, as well as listed
salmonids. The BiOp also concluded that the proposed activities would
have no effect on critical habitat, as the Canadian government has no
such designation within the action area. Finally, NMFS has incorporated
the Relevant Terms and Conditions of the Incidental Take Statement in
the BiOp into the IHA.
National Environmental Policy Act (NEPA)
On September 22, 2005 (70 FR 55630), NSF published a notice of
intent to prepare a Programmatic Environmental Impact Statement/
Overseas Environmental Impact Statement (EIS/OES) to evaluate the
potential environmental impacts associated with the use of seismic
sources in support of
[[Page 42873]]
NSF-funded research by U.S. academic scientists. NMFS agreed to be a
cooperating agency in the preparation of the EIS/OEIS. This EIS/OEIS
has not been completed.
Therefore, in order to meet NSF's and NMFS' NEPA requirements for
the proposed activity and issuance of an IHA to L-DEO, the NSF has
prepared an EA that is specific to the marine geophysical survey
conducted by the R/V Marcus G. Langseth in the northeast Pacific Ocean.
NSF's EA, titled, Marine Seismic Survey in the Northeast Pacific Ocean,
August/September, 2009 is based, in part, on an environmental
assessment report (hereinafter, Report), prepared by LGL Limited
environmental research associates (LGL) on behalf of NSF, titled,
``Environmental Assessment of a Marine Geophysical Survey by the R/V
Marcus G. Langseth in the Northeast Pacific Ocean, August September,
2009.'' The EA, and Report, specifically analyze the fact that L-DEO
intends to obtain an IHA from NMFS in order to conduct the seismic
survey. The EA evaluates the impacts of potential incidental Level B
harassment resulting from the specified activity in the specified
geographic region. The NSF has made a Finding of No Significant Impact
(FONSI) determination based on information contained within its EA and
Report, that implementation of the proposed action is not a major
Federal action having significant effects on the environment within the
meaning of NEPA. NSF determined, therefore, that an environmental
impact statement would not be prepared.
On May 8, 2009 (74 FR 2163), NMFS noted that the NSF had prepared
an EA for the northeast Pacific Ocean surveys and made this EA, and the
Report, available upon request. NMFS has independently reviewed the
information contained in NSF's EA and determined that the NSF EA
describes the proposed action alternative and evaluates and discloses
the potential impacts on marine mammals, endangered species, and other
marine life that could be impacted by the preferred alternative and the
other alternatives. Accordingly, NMFS has adopted the NSF EA, and
incorporated Report, under 40 CFR 1506.3 and made its own FONSI. The
NMFS FONSI also takes into consideration additional mitigation measures
required by the IHA that are not in NSF's EA or Report. Therefore, NMFS
has determined that it is not necessary to issue a new EA, supplemental
EA or an EIS for the issuance of an IHA to L-DEO for this activity. A
copy of the EA and the NMFS FONSI for this activity is available upon
request (see ADDRESSES).
Determinations
NMFS has determined that the impact of conducting the seismic
survey in the northeast Pacific Ocean may result, at worst, in a
temporary modification in behavior (Level B harassment) of small
numbers of 33 species of cetaceans. Though NMFS believes that take of
the requested numbers is unlikely, we still find these numbers small
relative to the population sizes. Further, this activity is not
expected to adversely affect any species or stock through affects on
annual recruitment or survival. Therefore, NMFS has determined that the
activity will have a negligible impact on the affected species or
stocks.
The provision requiring that the activity not have an unmitigable
adverse impact on the availability of the affected species or stock for
subsistence uses is not implicated for this proposed action. There is
no subsistence harvest of marine mammals in the proposed research area;
therefore, there will be no impact of the activity on the availability
of the species or stocks of marine mammals for subsistence uses.
The negligible impact determination is supported by: (1) the
likelihood that, given sufficient warning through relatively slow ship
speed, marine mammals are expected to move away from a noise source
that is annoying prior to it becoming potentially injurious; (2) the
fact that marine mammals would have to be closer than 40 m (131 ft) in
deep water, when a single airgun is in use from the vessel to be
exposed to levels of sound (180 dB) believed to have even a minimal
chance of causing TTS; (3) the fact that marine mammals would have to
be closer than 950 m (0.5 nm) in deep water, when the full array is in
use at a 9-15 m (29.5-49.2 ft) tow depth from the vessel to be exposed
to levels of sound (180 dB) believed to have even a minimal chance of
causing TTS; (4) the likelihood that marine mammal detection ability by
trained observers is good at those distances from the vessel; (5) the
use of PAM, which is effective out to tens of km, will assist in the
detection of vocalizing marine mammals at greater distances from the
vessel; (6) the incorporation of other required mitigation measures
(i.e., ramp-up, power-down, and shutdown); and (7) the limited duration
of the seismic survey in the study area (approximately 39 days). As a
result, no take by injury or death is anticipated, and the potential
for temporary or permanent hearing impairment is very low and will be
avoided through the incorporation of the required monitoring and
mitigation measures.
While the number of potential incidental harassment takes will
depend on the distribution and abundance of marine mammals in the
vicinity of the survey activity, the number of potential harassment
takings is estimated to be small, relative to the affected species and
stock sizes, and has been mitigated to the lowest level practicable
through incorporation of the measures mentioned previously in this
document.
Authorization
As a result of these determinations, NMFS has issued an IHA to L-
DEO for conducting a marine geophysical survey in the northeast Pacific
Ocean in August October, 2009, provided the previously mentioned
mitigation, monitoring, and reporting requirements are incorporated.
Dated: August 19, 2009.
James H. Lecky,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. E9-20492 Filed 8-24-09; 8:45 am]
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